Com. v. Burke

Citation607 N.E.2d 991,414 Mass. 252
PartiesCOMMONWEALTH v. Patrick M. BURKE.
Decision Date11 February 1993
CourtUnited States State Supreme Judicial Court of Massachusetts

Timothy J. Shugrue, Asst. Dist. Atty., for the Com.

John H. LaChance, Framingham, for defendant.

Before LIACOS, C.J., and NOLAN, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

On May 26, 1989, a jury convicted the defendant of murder in the first degree by reason of extreme atrocity or cruelty and deliberate premeditation. 1 The trial judge sentenced the defendant to life imprisonment. Following the withdrawal of his trial counsel, the defendant filed a motion for a new trial in the Supreme Judicial Court. The motion was referred to a single justice in the county court who remanded the motion to the Superior Court, where the trial judge denied it without a hearing. The defendant now appeals from the denial of his motion for a new trial and from his conviction. We affirm.

We summarize the evidence which the Commonwealth presented to the jury. 2 At about 9 P.M. on August 30, 1988, the victim, Nancy Fallon, left the house which she shared with her male friend. Fallon had just argued with him. She drove to a bar in Pittsfield. At the bar, Fallon first spent some time speaking with a regular customer. She was then approached by the defendant and David Talbot, who was also charged with Fallon's murder. 3 The defendant and Talbot sat next to Fallon and engaged her in conversation. The bartender overheard the defendant tell Fallon that he liked her. 4

Around 11:30 P.M., the defendant and Talbot told the bartender that they had no more money, whereupon the bartender bought them each a beer. At that time, Fallon was still sitting with the defendant and Talbot. At 11:45 P.M., the bartender gave the last call for drinks and proceeded to take orders. By the time the bartender reached the side of the bar where the victim had sat with the defendant and Talbot, all three were gone. The bartender did not know whether they had left together. Fallon was not seen alive again.

The next morning, the Pittsfield police department was notified by a private citizen that there were blood splatters and a tire iron stained with blood at a roadside rest area in Hancock. State troopers dispatched to the scene also found a bloody automobile floor mat and an open knife with blood on its blade. The floor mat was later identified as being from Fallon's automobile. The knife was identical to one she owned.

On September 3, 1988, the Marlborough police located Fallon's automobile. Several stains in the automobile tested positive for blood. On September 5, 1988, using a specially-trained dog to search the vicinity of the rest area, police found Fallon's body partially buried on a hill. Fallon had been stabbed twenty times in the left breast by a knife matching the size of her pocket knife. She had received a blunt trauma to the side of her head. Her jaw was fractured, and some of her teeth broken as a result of blows to her mouth. She had suffered trauma to her upper chest area, caused by kicking or stomping. Blows had caused a one and one-half inch laceration to her right lung. Also, front and back ribs had been broken. 5

On August 31, 1988, the day after Fallon's disappearance, the defendant and Talbot drove Fallon's automobile to Leominster, where they visited the defendant's girl friend, Jean Broughey. Broughey asked the defendant and Talbot how they obtained the automobile, and they advanced several different explanations, none of which made reference to the victim. Broughey also noticed that there were brown stains on the defendant's dungarees, and she inquired about them. The defendant replied that they were blood stains. He added that he had fought with someone while trying to steal an automobile on the previous night. Following this conversation, Broughey washed the defendant's dungarees.

The defendant, Talbot, and Broughey drank heavily throughout the morning. Around noon, they drove the victim's automobile to the defendant's parents' house. At his parents' house, the defendant burst out crying and said, "I can't take this." When Broughey asked the defendant why he was upset, the defendant replied that he thought Broughey "did not love him." Broughey, however, testified that she and the defendant had had no disagreement that morning and that she had treated him "cordially" all along. Later, the defendant, Talbot, and Broughey went to visit friends in Marlborough. Again, the group used the victim's automobile. Along the way, Broughey noticed blood on the windshield. She inquired about the blood, whereupon Talbot moistened a sponge with vodka and cleaned the windshield. At their friends' house, the defendant and his companions continued to drink heavily.

Some time later, the defendant left their friends' house in the victim's automobile to visit a former girl friend. The defendant was next seen walking on the streets of Marlborough by a police officer who concluded that the defendant was intoxicated and should be placed in protective custody. Broughey went to pick up the defendant at the Marlborough police station. Later that day, Broughey and the defendant had an argument that evolved into a physical fight, and Broughey left the defendant.

The defendant wanted to use the victim's automobile again, but he could not remember where he had left it. The next day, September 1, 1988, the defendant called Broughey early in the morning. He told Broughey that he had "lost" the automobile in Marlborough. Broughey told him that she had left her purse in the automobile. The defendant replied that she should report her purse stolen.

On that same day, the defendant made an incriminating statement to Regina Strong, the fifteen year old daughter of Talbot's girl friend, Irene Hilliard. While conversing with the defendant in her mother's house, Strong inquired about the cuts on his hands. The defendant replied that he had killed a woman. The defendant said that he met the woman in a bar and wanted to "get laid." The defendant added that he threw a knife into the woods.

On September 3, 1988, the Marlborough police department located the victim's automobile. Police found Broughey's purse inside the automobile and telephoned her. 6 Following her conversation with the police, Broughey spoke with the defendant. She asked him whether he had killed anyone, and he replied that "he didn't know."

Meanwhile, police began to search for the defendant and Talbot. On September 5, 1988, Ipswich police officers stopped an automobile on Route 1A. When the vehicle pulled over to the side of the road, the defendant and Talbot ran from it and fled. Police found Talbot hiding nearby. The defendant managed to escape but he was found in the early morning hours hiding in a barn in Hamilton. Both the defendant and Talbot were placed under arrest.

In this appeal, the defendant argues that his counsel provided him with constitutionally defective representation and that the judge erred in his instructions to the jury. We begin with our discussion of the ineffective assistance claims.

I. Ineffective assistance of counsel claims. Our inquiry with respect to such claims has traditionally focused on "whether there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. MacKenzie, 413 Mass. 498, 517, 597 N.E.2d 1037 (1992), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). However, in reviewing "capital" cases pursuant to G.L. c. 278, § 33E (1990 ed.), we apply a standard of review "even more favorable to the defendant." Commonwealth v. MacKenzie, supra. We consider "whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992). In other words, we review a defendant's claim "even if the alleged error on the part of trial counsel does not constitute conduct falling 'measurably below' that of 'an ordinary fallible lawyer.' " Commonwealth v. MacKenzie, supra.

With these principles in mind, we turn to the merits of the present appeal.

(a) Cross-examination of the chemist with respect to blood on the defendant's dungarees. The Commonwealth introduced the dungarees that the defendant wore on the morning after the victim's murder. Karolyn LeClaire, a chemist with the Department of Public Safety, testified that the stains on the defendant's dungarees tested positive for blood. This evidence was relevant to the issue of the defendant's guilt and was properly admitted. See Commonwealth v. Wright, supra, 411 Mass. at 683, 584 N.E.2d 621.

The defendant argues that his trial counsel should have done more to impeach LeClaire. The defendant asserts that counsel should have explored some alleged differences of opinion between LeClaire and the chemist who actually tested the defendant's dungarees, Robert Pino. 7 The defendant also argues that trial counsel should have rebutted LeClaire's testimony with chemical reports that showed that Burke's dungarees tested negative for blood. Finally, the defendant faults his counsel for not eliciting on cross-examination that substances other than blood may trigger positive results under the ortho-tolidine test which Pino used.

The record does not support the defendant's claims. Counsel had nothing to gain from exploring the differences between LeClaire's testimony and Pino's analysis. While LeClaire conceded that she could not characterize the blood as human, Pino wrote in his report that the blood was of human origin. Had counsel attempted to impeach LeClaire with...

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